Having regard to the above application lodged
with the European Court of Human Rights on 16 May 2005,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Sead Hukic, Mrs Sabina Hukic
and their two children, Dzenita and Jasmin, are nationals of Bosnia
and Herzegovina, and were born in 1967, 1972, 1993 and 2000, respectively.
They are currently in Sweden. They were represented before the Court
by Mr J. Wahlström, a lawyer practising in Lund.

A. The circumstances of the case

The facts of the case, as submitted by the applicants,
may be summarised as follows.

1. The background and proceedings before
the national authorities

The applicants are Bosniacs and, until their
departure from Bosnia and Herzegovina, they lived in Tuzla. On 17 January
2003 the first applicant arrived in Sweden and applied for asylum and
a residence permit. On 3 February 2003 the other three applicants arrived
and joined the first applicant’s request for asylum and residence
permits. Before the Migration Board (Migrationsverket) they stated that their primary reason for
requesting asylum was that the fourth applicant suffered from Down’s
syndrome (a genetic disorder that causes mental retardation, severe
learning disabilities and other problems) and epilepsy for which he
had received no treatment or care in Bosnia and Herzegovina. On the
contrary, he had been considered as a lower ranking person and treated
in a degrading manner by physicians and people in their surroundings.

The applicants’ second reason for requesting
asylum was that the first applicant had belonged to a special unit of
the police which, in November 2001, had arrested F.O., a dangerous criminal
with ties to the mafia who had been wanted by Interpol. F.O. had tried
to escape but the first applicant and another police officer had managed
to catch him. On his arrest, F.O. had repeatedly threatened the first
applicant. After about six to eight months in prison, F.O. had been
released. However, just after F.O.’s arrest, the applicants had started
to receive telephone threats and the first applicant had been attacked
by unknown men in January 2002 and again in March, June, September and
December 2002. Each time he had managed to defend himself but his aggressors
had threatened him and had mentioned F.O.’s name. The first applicant
had talked to his superiors about the threats and attacks, but he had
received no support or protection. Thus, he had had to leave the country
since F.O. had contacts all over the country and the applicants therefore
would not be safe anywhere in Bosnia and Herzegovina.

On 16 May 2003 the Migration Board rejected the
application. It noted that the purported threats and attacks had been
carried out by criminals and were not sanctioned by the national authorities.
It considered that the applicants had neither exhausted the possibilities
to get help and protection in their home country nor shown that the
national authorities would be unwilling or unable to help them. Thus,
the applicants could not be granted asylum. As concerned the fourth
applicant, the Migration Board considered that his handicap was not
of such a kind that the family could be granted residence permits on
humanitarian grounds. In reaching this conclusion, the Migration Board
noted that there was medical care available in Bosnia and Herzegovina
and considered that the availability of care of a higher standard in
Sweden was not a reason to let the family stay.

On 26 February 2004 the Aliens Appeals Board
(Utlänningsnämnden)
upheld the Migration Board’s decision in full and ordered the applicants
to leave Sweden within two weeks.

The applicants lodged a new application for residence
permits on humanitarian grounds with the Aliens Appeals Board. They
stated that the conditions for handicapped children were very poor in
Bosnia and Herzegovina and that there was no care or treatment for persons
with Down’s syndrome. Society’s attitude was that these children
should not have been born. Although almost four years’ old, the fourth
applicant could not yet walk, stand or eat by himself. Moreover, his
legs were shaking, he had a low immune defence and was lacking thyroxin
(a hormone that regulates the metabolic activity of the body by controlling
the rate of oxidation in cells and, when too low, retards growth and
mental development in children). In Sweden he was receiving treatment
and rehabilitation measures which were essential for his development
and to which he was responding positively.

On 17 June 2004 the Aliens Appeals Board rejected
the new application. It stated that it had already considered the fourth
applicant’s health in its previous decision and it found no reason
to change that decision on the basis of the new information relied on
by the applicants.

In the meantime, since the applicants had refused
to leave Sweden voluntarily and the Aliens Appeals Board had refused
to stay the enforcement of the deportation order awaiting its new decision,
the matter had been handed over to the police who had scheduled their
deportation to Bosnia and Herzegovina for 2 June 2004. However, on that
date the applicants could not be found at their home. On 7 September
2004, the Danish immigration authorities requested Sweden to accept
the family back in accordance with the Dublin Convention as they, on
26 June 2004, had requested asylum in Denmark. On 17 September 2004
the Migration Board accepted the request and, on 27 September 2004,
the applicants were returned from Denmark to Sweden and renewed their
request for asylum and residence permits. They maintained their earlier
claims and added that during their stay in Denmark the fourth applicant’s
health had regressed as he had not received proper medication and the
entire family was in poor mental health. Furthermore, they had no economic
resources to survive in Bosnia and Herzegovina and no social assistance.

On 5 October 2004 the Migration Board rejected
the application. It observed that the applicants’ reasons for asylum
had already been considered once and it found no grounds on which to
change its former decision. It further decided that the applicants should
be deported immediately since it was evident that they would not be
granted asylum or leave to stay for any other reason. On 30 November
2004 the Aliens Appeals Board upheld the Migration Board’s decision
in full.

The applicants lodged a new application for asylum
with the Aliens Appeals Board, adding to their earlier claims that the
first applicant had lodged a complaint with the European Union Police
Mission concerning FO’s threats to his family which was being investigated.
Although FO had now been convicted of serious crimes and was in prison,
the result of the investigation could show that the applicants were
in need of protection in Sweden. Moreover, the fourth applicant’s
health had regressed somewhat and he was in need of more support and
treatment.

On 14 February 2005 the Aliens Appeals Board
rejected the new application on the grounds that it was up to the national
authorities to protect the applicants against criminals within the country
and that there were no circumstances which indicated that the authorities
in Bosnia and Herzegovina would not be able or willing to offer such
protection. Having regard to all the circumstances of the case, including
the fourth applicant’s situation, the Aliens Appeals Board found that
it would not constitute a violation of humanitarian standards to deport
the applicants to their home country.

On 19 May 2005 the Aliens Appeals Board rejected
yet another new application for residence permits by the applicants
as they had invoked no new circumstances.

2. The fourth applicant’s state of
health

The applicants have submitted two medical certificates
concerning the fourth applicant, both issued by two specialists in child
and youth neurology, Dr P. Sjöberg and Dr J. Landehag.

The first medical certificate was dated 16 March
2005 and stated that the fourth applicant was born with Down’s syndrome
and that he had a lack of thyroxin. Moreover, he suffered from an epileptic
illness (the Landau-Kleffner syndrome) which had caused him to lose
his ability to talk and communicate. He received medication and treatment
for his handicap and illnesses but was in need of regular examinations.
Furthermore, it was very important that he followed continuous treatment
on several levels in order to have some quality of life. This sort of
treatment was not available in Bosnia and Herzegovina.

The second medical certificate was dated 30 May
2005 and, besides referring to the above certificate, it stated the
following: The fourth applicant has Down’s syndrome and an epileptic
illness which involves epileptic activities in the brain and the loss
of language as well as the understanding of language. As concerns his
Down’s syndrome, he was undergoing good rehabilitation training, physiotherapy,
occupational therapy, special education and speech therapy. They were
concentrating on communication and motor activity. His problems with
swallowing would be examined by a speech therapist together with a dietician.
He had shown clear progress after treatment with Lamictal (an anti-epileptic medicine) and had regained an interest
in communication and could also pronounce one or two single words, a
progress from having been completely wordless and almost without any
interest in interplay with others. For the future, the physicians were
planning continued rehabilitation and a renewed evaluation of his epilepsy
to see how he had reacted to the medication. He would probably need
an increased dose of Lamictal after the evaluation. In conclusion the physicians
stated that he was reacting very well to the treatment and for this
positive development to continue it was an absolute prerequisite that
he remain in Sweden or another Western country where he could receive
the same treatment.

3. Possibilities for treatment in Bosnia
and Herzegovina

The applicants submitted a letter, dated 3 June
2005, by Prof. Dr. H. Tahirovic, ScD, and Ass. Dr. M. Hasanhodzic, M.Sc.
at the Clinic for Children’s Diseases, University Clinic in Tuzla,
which provided the following information:

At the Clinic for Children’s Diseases it was
possible to diagnose Down’s syndrome and to follow up the functions
of the thyroid and to offer treatment for thyroid disorders. It was
also possible to diagnose epilepsy, to prescribe Lamictal treatment and to have a child followed by neuro-paediatricians,
endocrinologists, cardiologists, clinical geneticists and other specialists.
However, at the moment, they could not promise that it would be possible
to include a child in programmes of neuro-developing and stimulating
exercises, speech pathology, psychological treatment or to include a
child in a special school or pedagogical programme. Moreover, in the
area, there were not enough institutions to receive and help all children
with special needs and so parents were forced to care for their children
and to implement necessary treatment in accordance with their financial
capabilities.

According to information from 20021,
there were special programmes for the social and health protection of
children and families, the mentally handicapped, the elderly and civilian
war victims. All ten cantons in Bosnia and Herzegovina provided social
and child protection within 79 local centers. Most of these institutes
had been modernized, and some had been newly established. There were
also centers for persons with mental and physical handicaps.

Furthermore, in August 2001 the Act on the protection of mentally handicapped persons was adopted
in Bosnia and Herzegovina2.
It provides for basic principles, means of organization and the realization
of the protection of mentally handicapped persons, and it contains, inter alia,
provisions relating to health care and the rights and obligations of
beneficiaries.

COMPLAINTS

The applicants complained that, if deported to
Bosnia and Herzegovina, they would risk being persecuted and/or killed
by the mafia as the first applicant had arrested a criminal leader.
Moreover, they claimed that deportation would cause irreparable damage
to the fourth applicant since he was suffering from Down’s syndrome
and would receive no treatment or medical care in his home country for
his handicap.

THE LAW

The applicants alleged that their deportation
to Bosnia and Herzegovina would expose them to a real risk of being
persecuted and of causing irreparable damage to the fourth applicant.

Their complaints fall within the scope of Article
3 of the Convention and will be considered in relation to this provision
which reads:

“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”

1. The applicants stated that they would face
a real risk of being persecuted or killed by the mafia because the first
applicant had arrested a criminal leader.

The Court reiterates at the outset that Contracting
States have the right, as a matter of well-established international
law and subject to their treaty obligations, including the Convention,
to control the entry, residence and expulsion of aliens. However, the
expulsion of an alien by a Contracting State may give rise to an issue
under Article 3, and hence engage the responsibility of that State under
the Convention, where substantial grounds have been shown for believing
that the person in question, if expelled, would face a real risk of
being subjected to treatment contrary to Article 3 in the receiving
country. In these circumstances, Article 3 implies the obligation not
to expel the person in question to that country (see, among other authorities, H.L.R. v. France,
judgment of 29 April 1997, Reports of Judgments and Decisions 1997-III, p. 757, §§ 33-34).

The Court observes that the applicants have submitted
no evidence to substantiate either their claims about past threats and
harassment in Bosnia and Herzegovina or that they would risk treatment
contrary to Article 3 of the Convention upon return to their home country.
Even assuming that the applicants’ own account of events is accurate,
the Court shares the conclusions of the Swedish immigration authorities
that there is no indication that the attacks, of which the applicants
claimed to have been the victims, had been approved by the authorities
in Bosnia and Herzegovina or that the national authorities there would
be unwilling or unable to protect them. In this respect the Court attaches
importance to the fact that the case concerns deportation to another
High Contracting Party to the European Convention on Human Rights, which
has undertaken to secure the fundamental rights guaranteed under its
provisions (see Tomic v. the United Kingdom, (dec.), no. 17837/03, 14 October
2003).

It follows that this part of the application
is manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention.

2. The applicants further alleged that their
deportation from Sweden to Bosnia and Herzegovina would cause irreparable
damage to the fourth applicant as he would receive no care or treatment
for his handicap there.

The Court reiterates that, due to the fundamental
importance of Article 3, the Court has reserved to itself the possibility
of scrutinising an applicant’s claim under Article 3 where the source
of the risk of the proscribed treatment in the receiving country stems
from factors which cannot engage either directly or indirectly the responsibility
of the public authorities of that country, or which, taken alone, do
not in themselves infringe the standards of that Article. In any such
contexts, however, the Court is obliged to subject all the circumstances
surrounding the case to rigorous scrutiny, especially the applicant’s
personal situation in the deporting State (see the D. v UnitedKingdom judgment of 2 May 1997, Reports 1997-III, § 49).

Consequently, the Court will examine whether
the deportation of the applicants to Bosnia and Herzegovina would be
contrary to Article 3 having regard to all the material before it, including
the most recently available information on the fourth applicant’s
state of health.

Here the Court would highlight that, according
to established case-law, aliens who are subject to deportation cannot
in principle claim any entitlement to remain in the territory of a Contracting
State in order to continue to benefit from medical, social or other
forms of assistance provided by the deporting State. However, in exceptional
circumstances the implementation of a decision to remove an alien may,
owing to compelling humanitarian considerations, result in a violation
of Article 3 (see, for example, the D. v. United Kingdom judgment, cited above, § 54).

The Court does not question that the fourth applicant’s
handicap is of a serious nature and that he is in need of support and
treatment to enable him to develop and improve his quality of life.
In this respect, the Court observes that there is care and treatment
available in the applicant’s home country, although not of the same
standard as in Sweden and not as readily available. Still, according
to the information obtained in the present case, the Clinic for Children’s
Diseases in Tuzla, the applicants’ home town, can provide treatment
and rehabilitation for children with Down’s syndrome. Moreover, there
exist special programmes for the mentally handicapped and children.
The Court is aware that the care and treatment, if specialized, most
probably would come at considerable cost for the individual. However,
the fact that the fourth applicant’s circumstances in Bosnia and Herzegovina
would be less favourable than those enjoyed by him in Sweden cannot
be regarded as decisive from the point of view of Article 3 (see, Bensaid v. United
Kingdom, no. 44599/98, § 38, ECHR 2001-I; Salkic and others v. Sweden, (dec.), no. 7702/04, 29 June 2004,
unreported).

Despite the seriousness of the fourth applicant’s
handicap, the Court considers that Down’s syndrome cannot be compared
to the final stages of a fatal illness. Thus, having regard to the high
threshold set by Article 3, particularly where the case does not concern
the direct responsibility of the Contracting State for the possible
harm, the Court does not find that the applicants’ deportation to
Bosnia and Herzegovina would be contrary to the standards of Article
3 of the Convention. In the Court’s view, the present case does not
disclose the exceptional circumstances established by its case-law (see,
among other, D v. United Kingdom, cited above, § 54).

It follows that this part of the application
must be rejected as being manifestly ill-founded pursuant to Article
35 §§ 3 and 4 of the Convention.